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May the Beneficiary of an Illinois Land Trust Proceed Under Chapter XII of the Bankruptcy Act, 10 J UIC Law Review Volume 10 Issue 3 Article 6 Spring 1977 May the Beneficiary of an Illinois Land Trust Proceed under Chapter XII of the Bankruptcy Act, 10 J. Marshall J. Prac. & Proc. 567 (1977) Roman R. Okrei Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Bankruptcy Law Commons, and the Property Law and Real Estate Commons Recommended Citation Roman R. Okrei, May the Beneficiary of an Illinois Land Trust Proceed under Chapter XII of the Bankruptcy Act, 10 J. Marshall J. Prac. & Proc. 567 (1977) https://repository.law.uic.edu/lawreview/vol10/iss3/6 This Comments is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. MAY THE BENEFICIARY OF AN ILLINOIS LAND TRUST PROCEED UNDER CHAPTER XII OF THE BANKRUPTCY ACT? It is a matter of general knowledge that a financially dis- tressed debtor, under certain circumstances, may file for bank- ruptcy in federal court.' It is not commonly known, however, that in lieu of declaring bankruptcy a debtor can arrange to pay off his creditors over an extended period of time.2 Chapter XII of the Bankruptcy Act 3 contains provisions for one such arrange- ment. These provisions are available only to persons other than corporations who legally or equitably 4 own chattel real or real estate which was pledged as security for a debt. 5 If the debtor is the legal or equitable owner of such real property, Chapter XII provides a means whereby the debtor can satisfy his creditors and still retain ownership and possession of his property. On its face, Chapter XII appears to be available to any financially troubled noncorporate debtor who owns real property. How- ever, whether the beneficiary of an Illinois land trust qualifies as such a person, thereby having access to Chapter XII, is an important but unsettled question. In Illinois and a handful of other states, 6 an owner of real property can convey that property to a trustee contemporane- ously with a land trust agreement.7 In so doing the owner trans- 1. 11 U.S.C. §§ 1-1103 (1970). 2. The Bankruptcy Act has provisions for such arrangements. Id. §§ 701-1086 (1970). 3. Id. §§ 801-906 (1970). 4. An example of an equitable owner for bankruptcy purposes ap- peared in In re Colonial Realty Inv. Co., 516 F.2d 154 (1st Cir. 1975). The term "equitable interest," as used throughout this comment, re- fers to equitable title which is defined as follows: "A right in the party to whom it belongs to have the legal title transferred to him; equity re- gards as the real owner, although the legal title is vested in another." BLACK'S LAW DICTIONARY 1656 (4th ed. 1951). 5. 11 U.S.C. § 806(6) (1970) defines a debtor for the purpose of Chapter XII as follows: 'debtor' shall mean a person, other than a corporation as defined in this title, who could become a bankrupt under section 22 of this title, who files a petition under this chapter and who is the legal or equitable owner of real property or a chattel real which is security for any debt .... See In re Chalkey, 34 F. Supp. 969 (D.C. Tenn. 1940). 6. FLA. STAT. ANN. § 689.071 (West Supp. 1977); IND. CODE § 4- 2-13 (1971); N.D. CENT. CODE § 59-03-02 (1967); VA. CODE § 55-17.1 (1962). 7. In creating a land trust agreement, two instruments are executed simultaneously. A deed in trust is used to convey legal title of the prop- erty to the trustee, while a separate instrument defines what powers the 568 The John Marshall Journal of Practice and Procedure [Vol. 10: 567 forms his legal and equitable interest in the real property to an interest in personal property.8 It is this transformation of real property into personal property which creates a question in this area. If the owner's interest in the real property has become an interest in personal property, can the owner-debtor proceed under a Chapter XII arrangement? Two salient issues are raised by this dilemma. First, if the beneficiary of an Illinois land trust" has an interest in personal property only, is this interest included within the provisions of Chapter XII of the Bankruptcy Act? Second, does the benefici- ary of an Illinois land trust actually have an equitable interest in real property, regardless of the fact that land trusts in Illinois are commonly regarded as personal property? A brief examina- tion of the Illinois land trust will bring these two issues into proper focus and perspective, demonstrating the importance of resolving this seeming dichotomy. MAJOR ATTRIBUTES OF ILLINOIS LAND TRUSTS Owners of real property have discovered that there are several elements of an Illinois land trust which are more favor- able than outright legal ownership of the property. One such element is that the beneficiary's name does not appear on the public records,' 0 which allows the beneficiary the privacy of ownership that can be extremely valuable under certain circum- stances." Another benefit is that if a judgment or tax lien is entered against the beneficiary of a land trust, the legal title to the real estate is not subject to a judgment lien or a tax lien.' 2 Also important are the facts that a beneficiary can get a mortgage loan without recourse 13 and can transfer his bene- trustee is to have. Robinson v. Chicago Nat'l Bank, 32 Ill. App. 2d 55, 176 N.E.2d 659 (1961). 8. An excellent explanation of this principle was stated in Levine v. Pascal, 94 Ill. App. 2d 43, 236 N.E.2d 425 (1968): The Illinois land trust, by its very nature, is characteristically dif- ferent from a common-law land trust. While the common-law ac- complishes a split between the legal title in the trustee and the equitable title in the beneficiary, in an Illinois land trust, the trustee has both legal and equitable title .... By placing with the trustee the full, complete and exclusive title to the real estate, both legal and equitable, the beneficiary in an Illinois land trust is left with a personal property interest only. Id. at 50, 236 N.E.2d at 428 (citations omitted). 9. For an excellent discussion of all aspects of the Illinois land trust, see H. KENOE, LAND TRUST PRACTICE (IICLE 1974). 10. Turner, Some Legal Aspects of Beneficial Interests Under Illinois Land Trusts, 39 ILL. L. REv. 216, 219 (1945). 11. For example, if a private developer wants to put together several, separately owned tracts of land, his anonymity could prevent sellers from drastically increasing their prices. 12. Whitaker v. Scherrer, 313 Ill. 473, 145 N.E. 177 (1924). 13. H. KENOE, LAND TRUST PRACTICE 1-8 (IICLE 1974). 1977] Illinois Land Trust and Chapter XII Bankruptcy 569 ficial interest by assignment. 14 This avoids the expense and the burden involved in the conveyance of real property. Still another advantage available to the beneficiary of a land trust is that because the Illinois courts treat the beneficial inter- est as a chose in action, 15 the beneficiary may pledge his inter- est in the land as security for a debt or loan. Futhermore, when the beneficiary dies his interest in the land trust passes to his executor or administrator as personal property. 16 This is often preferable to having a real property interest pass at death in that the executor or administrator can dispose of the personal property interest more expeditiously. Because of these obvious advantages to outright legal owner- ship of real property, there is little doubt that the use of the Illinois land trust will increase as more real property owners are made aware of its existence. Equally probable is that as more land trusts are created, the amount of litigation they engender in the area of bankruptcy can be expected to increase. Conse- quently, the beneficiary of the land trust who finds himself in financial difficulty may be interested to know whether or not he can retain his land while still paying off his creditors in lieu of going into a straight bankruptcy. An examination of Chapter XII of the Bankruptcy Act aids in bringing this problem into focus. REAL PROPERTY ARRANGEMENT ADVANTAGES OVER BANKRUPTCY Initially, we must consider why a debtor would want to proceed under 'Chapter XII instead of going into bankruptcy. 7 Although not a panacea, many debtors and creditors find that a Chapter XII arrangement leaves them in a better position than would a straight bankruptcy proceeding. For example, by filing a petition under Chapter XII the debtor can retain possession of his property while repaying his creditors over an extended period of time.18 Both creditor and debtor benefit from these circumstances. The debtor is still in control of his property, albeit subject to court supervision, and can assure its continued use in a productive manner. The debtor is thus assured that 14. See Burns v. Epstein, 413 Ill. 476, 109 N.E.2d 774 (1952). 15. Levine v. Pascal, 94 Ill. App. 2d 43, 236 N.E.2d 425 (1968). 16. In re Peters, 34 Ill. 2d 536, 217 N.E.2d 3 (1966). 17. The noncorporate debtor who gave his land as security cannot always use the other arrangements provided for under the Bankruptcy Act. For example, Chapter X of the Bankruptcy Act is available only for corporate reorganization, 11 U.S.C.
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